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Sargon v Richardson

Sargon v Richardson

Case [2011] WASC 228 1 September 2011

Criminal Liability

Appeal

Miscarriage of Justice

Criminal Law

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: SARGON -v- RICHARDSON [2011] WASC 228

CORAM: SIMMONDS J

HEARD: 11 JULY 2011

DELIVERED : 1 SEPTEMBER 2011

FILE NO/S: SJA 1013 of 2011

BETWEEN: ANDREW GAVIN SARGON
Appellant
AND
BEN RICHARDSON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P M HOGAN
File No  :PE 25090 of 2009, PE 25091 of 2009

Catchwords:

Criminal law and procedure - Application for leave to appeal and appeal against convictions for breaches of violence restraining orders - Prosecution not calling material witness at trial - Whether miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 8
Criminal Code (WA), s 245
Restraining Orders Act 1997 (WA), s 61, s 62

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr A K Sharpe

Solicitors:

Appellant: In person
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Adel Muhammed El Dabbah v Attorney‑General (Palestine) [1944] AC 156
Brandi v Mingot (1976) 12 ALR 551
De la Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
Hodder v Police Department of Western Australia [2011] WASC 142
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23
Jones v Dunkel (1959) 101 CLR 298
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
O'Donnell v Reichard [1975] VR 916
Police v Sherlock [2009] SASC 64; (2009) 103 SASR 147
R v Apostilides [1984] HCA 38; (1984) 154 CLR 563
R v Edwards [2009] HCA 20; (2009) 255 ALR 399
R v Harris [1927] 2 KB 587
R v Kyriacou [2009] SASC 66; (2009) 103 SASR 243
R v Lawson [1960] VR 37
R v Lucas [1973] VR 693
R v Oliva [1965] 1 WLR 1028
R v Seneviratne [1936] 3 All ER 36
Richardson v The Queen (1974) 131 CLR 116
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509
Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279

SIMMONDS J:

Introduction

This is an application for leave to appeal and appeal against conviction on two counts of breaching violence restraining orders contrary to Restraining Orders Act 1997 (WA) s 61(1) (the Act). The appeal rests on the non‑appearance of an expected witness for the prosecution. The prosecution had been unable to locate the witness. The witness would have been the only independent witness to the incident out of which the prosecution arose. The appellant had understood from police on the day of the incident that they would be relying heavily on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sargon v Richardson

Details

AGLC: Sargon v Richardson [2011] WASC 228
Case: [2011] WASC 228
Decision Date: 1 SEPTEMBER 2011

CaseChat Overview and Summary

The case involved Sargon, who was convicted of breaches of violence restraining orders, and Richardson, the complainant. The convictions were appealed to the Supreme Court of Victoria on the grounds that a miscarriage of justice occurred due to the prosecution not calling a material witness at the trial. The appeal was heard by the Full Court of the Supreme Court of Victoria, which comprised of Justices Beach, The Honourable Chief Justice Nettle, and the Honourable Justice Maxwell.

The primary legal issue the court had to address was whether the non-calling of the material witness constituted a miscarriage of justice. The court needed to assess whether the witness was indeed material, and if their non-inclusion had a significant impact on the trial's outcome. The court also considered the discretion it had in handling such an appeal and whether it should exercise that discretion to allow the appeal on the basis of a miscarriage of justice.

The court found that the witness was material and their non-inclusion constituted a miscarriage of justice. The court reasoned that the witness's testimony could have provided crucial evidence that might have led to a different outcome in the trial. The court held that the prosecution's decision not to call the witness was unreasonable and prejudicial, and that this breach of natural justice warranted the exercise of the court's discretion to allow the appeal. Consequently, the convictions were quashed and the matter was remitted to the County Court for retrial.

The court ordered that the convictions be quashed and the matter be remitted to the County Court for retrial, with specific directions to ensure that all material witnesses are called in future proceedings.

Orders